One of the fundamental goals of a legal system is to establish standards in reconciling competing social interests by weighing their relative values in a society. The same is applied to a society’s libel laws, which provide a peaceful means for individuals to obtain vindication and compensation for their reputational harm and related losses. Therefore, libel laws furnish judicial remedies, based on such legislative acts as civil codes or press laws, to individuals whose reputational interests have been violated by the media in disseminating news. This is especially true of those countries where the right of reply is recognized as a way to resolve the conflicts between protection of reputation and freedom of the press.
The right of reply is a statutory right for a defamed person to respond to the precipitating libelous publication. It affords the defamed an opportunity to use the same amount of space or time as the original libelous article. It provides relief in libel litigation that awards an equalizing opportunity for publication or broadcast of a counterclaim in the same medium in which a defamatory remark was published about an individual. The right of reply can also be a means for those who seek access to the mass media to disseminate their views in opposition to statements previously broadcast or published. The core point of the right of reply is that the person who has been libeled may answer in kind.
Under a legal system that allows the right of reply, a news media outlet must publish or broadcast a statement that the injured party has prepared. It is premised on a belief that this remedy in libel law can serve to build an enabling environment by providing the public with the assurance that the effect of journalistic abuses can be mitigated without unreasonable interference with journalistic freedoms.
The right of reply addresses the actual or perceived abuses of press freedoms in a way less threatening to media independence than do libel lawsuits. Despite good reason for recognizing and applying the right of reply, however, there remain a few issues about how and to what extent it can be exercised in actual cases.
One fundamental issue is whether the right of reply would impose a chilling effect on the freedom of the press as a constitutional right. Law professor Jerome Barron of George Washington University, for example, asserts that the right of reply can serve as an alternative to intrusive and often expensive defamation litigation that can chill the exercise of independent editorial discretion. Nonetheless, others who oppose the right of reply disagree. They argue that the right of reply may in itself threaten press freedoms unless it is limited in such a way as to recognize freedom of the press and the public’s right to receive information.
Another issue is whether the right of reply covers all types of media. This concerns the press/broadcast dichotomy principle that US courts have long accepted in ruling on the public’s access to the media. In the United States, the legal right of reply has never been imposed on the print media. But in France, Germany, and South Korea, among other nations, the public is eligible for a right of reply in both print and broadcast media.
Similarly, the right of reply debate focuses on whether the right of reply should be strictly limited to fact (factual assertions). France, for instance, offers the injured the right of reply to opinions as well as facts. It stands in sharp contrast with Germany, in which the right of reply applies only to factual assertions. A problem is that, when limited to fact, it is often difficult to distinguish fact from opinion.
Other issues include whether the government or a governmental body can exercise the right of reply. In South Korea, where the right of reply is well entrenched in its law, a governmental body can ask for an arbitration process for a reply to the media content. This differs from most western countries, where the government generally is not allowed to seek a reply in the media.
The most recently generated controversy over the right of reply is whether the Internet media can be subject to the right of reply. The Internet is growingly responsible for reputational injury, as more people and media distribute stories through the Internet. Yet it is unclear how and to what extent the right of reply can extend to cybercommunication because the Internet is essentially different from the traditional news media.
About 30 or so countries guarantee the right of reply. From the perspective of freedom of speech and the press, however, the mandatory right of reply may infringe on the right of editorial decision-making.
The right of reply should be allowed only with certain conditions, according to several legal scholars. Otherwise, a news media might be so overpowered by such reply demands that it will lose its own editorial identity and become simply a conduit for the statements of others. Thus, if publication of a reply is required, its size should not exceed the volume of the text to which the objection was raised. Nor should its position of eminence within the printed matter or broadcast be greater than that of the original statement. In addition, if a reply defames a third person, the media outlet should be able to reject the complainant’s claim.
Meanwhile, how the right of reply is carried out in reality differs from country to country. In Germany, each Land (state) has a press law that requires newspapers and periodicals to publish replies, or counterversions, from people affected by a defamatory assertion of fact. Press laws stipulate that replies be provided in the same typeface and given the same prominence as the original article. A reply may not exceed the length of the original article. Reply statements are limited to factual allegations. Complainants have three months to request their reply, and editors who fail to comply voluntarily can be ordered to do so by the civil courts.
In France, the right of reply has been available since the Freedom of the Press Act of 1881 to anyone mentioned or clearly alluded to in the press, whether or not the article is inaccurate or defamatory. Article 12 requires the editorial director to include a reply statement free of charge in the most prominent position of the next issue of the newspaper or periodical. Article 13 allows an individual to exercise the right of reply, which can be of the same length and in the same typeface as the offending article. The reply must not violate the rights of others or attack the integrity of the journalist. Significantly, French law denies the right of reply of medical doctors and police officers.
South Korea has recognized the statutory right of reply since the early 1980s. Since the Press Arbitration Commission (PAC) was created in 1981 as a mechanism to enforce the right of reply, South Korea has developed a unique and well-structured remedy system. In 2005 its National Assembly passed a special implementation law on the right of reply as well as the right of correction. The Press Arbitration Act provides for remedies for individuals whose reputations have been damaged and authorizes the PAC to manage the process. Under the law, an individual can file a petition not only for reply but also for monetary damages for libel.
In the United States, the right of reply has been viewed mainly as the public’s right of access to the media. No right of reply is acceptable in relation to the print media. In Miami Herald v. Tornillo (1974), the US Supreme Court held that a mandatory right of reply is an unconstitutional interference with the First Amendment right of the print media to free speech. But the right of reply is more accommodated in broadcasting law of the United States. In Red Lion Broadcasting Co. v. FCC (1969), the US Supreme Court, upholding the “fairness doctrine” of the American broadcasting law, found that the broadcast licensees could be required to provide airtime to those who have contrasting views in response to the broadcasting of controversial issues. Nonetheless, the fairness doctrine was repealed by the Federal Communications Commission (FCC) in the late 1980s. Likewise, the FCC stopped enforcing the personal attack rule, which permitted a person whose character was attacked by a broadcast station to reply to the attack without cost, and the political editorial rule, which required a broadcaster to notify and give an opportunity to a political candidate to respond to the broadcaster’s endorsement on another candidate.
Among other European countries, Austria, Denmark, Greece, Finland, Norway, Spain, and Sweden recognize the right of reply. In Japan, the right of reply has not been resurrected after it was repealed in 1945.
The right of reply guarantees that a party injured by often defamatory statements has the opportunity (the right) to respond to the injurious statements. To better understand the right of reply, it is necessary to know how differently it is applied as well as how it has evolved. Although most countries consider the right of reply an effective way for an individual to repair his or her tarnished reputation, how the right is implemented hinges on a nation’s legal and historical context, in which freedom of the press has been balanced against reputation as a competing interest. The right of reply will more likely meet its ultimate aim when the media accept it as part of their ethical journalism rather than as a legal requirement.
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